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Firm Lines: Justice Scalia’s Criminal Justice Legacy

February 16, 2016 09:04:59 am

By Brandon Garrett

Justice Antonin Scalia's criminal jurisprudence will be remembered, perhaps more so than any other area that he influenced, as full of strong bright-line positions.  When he was right, he was really, really right.  When he was wrong, he was really, really wrong.

But his position on a criminal rights question was never unclear—although there were surprisingly blurred lines in some of Scalia's opinions—on topics where he simply did not think the right mattered much, or somehow couldn't be tied to the Founding Fathers.

On Fourth Amendment questions, Justice Scalia could come down decisively in favor of privacy and against warrantless police searches, deploring, for example, in Maryland v. King, in no uncertain terms, the "genetic panopticon" the Supreme Court Justices approved in the form of warrantless, suspicionless, DNA searches from arrestees.

He added: "I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

In Kyllo v. U.S., a case about thermo-imaging equipment used by police, he wrote that the Fourth Amendment created a "firm line at the entrance to the house."  Yet on  Fourth Amendment use-of-force cases: no firm lines there.  In that context, Justice Scalia supported the most aggressive uses of police force, calling for a very deferential balancing test, for example, in the Scott v. Harris case involving a near-deadly police chase.

In death penalty cases, unable or unwilling to perceive such a bright line argument against cruel and unusual punishments, except perhaps if medieval forms of torture were involved, Justice Scalia stood firm as the most vociferous supporter imaginable of the death penalty—even for the innocent—famously calling the specter of wrongful executions "embarrassing" but of no consequence to the U.S. Supreme Court.

In objecting to granting relief to Troy Davis, he asked what the lower courts would possibly do in the case, absent some clear recognized claim of innocence. He was right: the lower courts later denied relief, and Davis was executed.  It is hard to imagine that any successor to Justice Scalia will be quite as aggressively and outright politically pro-death penalty.

Indeed, Justice Scalia himself began to think that time might no longer be on his side, as more Justices have moved away from the death penalty (as has the country).

Last summer, in Glossip v. Gross, responding to a detailed empirically-supported opinion from Justice Steven Breyer, Justice Scalia characteristically responded with vitriol to the suggestion that there might be a constitutional problem with the modern death penalty.  He called  it more of the same product of "abolitionist studies" (although one of those cited was a book of mine, which include a study Justice Scalia had himself cited in one of his Confrontation Clause rulings).

Justice Scalia called the death penalty debate repetitive, like the movie "Groundhog Day."  He was right, though, that there will be "the same risk of wrongful convictions" without the American death penalty, "if horrendous death–penalty cases were converted into equally horrendous life–without–parole cases."

That is the problem we now face with declining death sentences and rising life-without- parole sentences in this country.  Justice Scalia’s comment begs the question, of course, of why we do not have better constitutional protections for adequate counsel and ability to claim innocence in life cases (or death cases).

The reason for that "horrendous" state of affairs includes decades of votes by Justice Scalia.

On jury trial rights, Justice Scalia emphasized the defense right to confront "testimonial" witnesses, with important results in a series of cases over the past decade that involved forensic science, from drug tests to modern DNA tests.

Crime labs had often simply introduced a one-page certificate of analysis reporting the result of a forensic test.  Justice Scalia's interventions meant that the defense now typically has the right to cross-examine that analyst on the stand. It is an important right, although it may not do much to improve reliability of forensics in the lab, particularly where so few cases go to trial.

However, Justice Scalia did not feel the same firm way about the Sixth Amendment right to an effective defense lawyer at trial.  In right-to-counsel cases in which defense lawyers utterly failed their clients, Justice Scalia often saw no problem.  He prominently dissented in such cases, calling it a "sham" when the Court extended protection to ineffective assistance of state habeas counsel, and complaining that the Court had opened up a whole area of "plea bargaining law" in rulings extending the right to ineffective assistance in plea deals.

The country has moved with Justice Scalia on sentencing practices, and he was ahead of his time in recognizing severe right to jury trial problems with vastly enhancing sentences based on facts found by a judge and not a jury.  The demise of the Sentencing Guidelines in its mandatory form, may not have produced the results that some would have hoped, but we can thank Justice Scalia's thinking for the move in that direction. Today, sentencing reform is on the move at the state and federal levels.

“I ought to be the darling of the criminal defense bar,” Justice Scalia has said—a line he often repeated in recent public appearances, with characteristically contrarian glee.

“I have defended criminal defendants’ rights—because they’re there in the original Constitution—to a greater degree than most judges have.”

Justice Scalia interpreted criminal procedure rights in his typically "firm line" fashion, at least for certain pet rights. For many other quite crucial rights, though, more meaningful protection may have to await the arrival of his successor.

Brandon Garrett is the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia School of Law, on Twitter @brandonlgarrett, and the author of Convicting the Innocent: Where Criminal Prosecutions Go Wrong, and most recently of Too Big to Jail: How Prosecutors Compromise With Corporations.

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